FINDINGS & RECOMMENDATIONS
Plaintiff is a California prisoner proceeding pro se with an action for violation of civil rights under 42 U.S.C. § 1983. This action is currently proceeding against defendant Koos (defendant) based upon an alleged violation of the Eighth Amendment. Defendant has filed a motion in which she asserts this action should be dismissed for plaintiff's failure to exhaust administrative remedies with respect to his claim prior to filing suit.
A motion to dismiss for failure to exhaust administrative remedies prior to filing suit arises under Rule 12(b) of the Federal Rules of Civil Procedure. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). In deciding a motion to dismiss for failure to exhaust non-judicial remedies, the court may look beyond the pleadings and decide disputed issues of fact. Id. at 1120. If the district court concludes that the prisoner has not exhausted non-judicial remedies, the proper remedy is dismissal of the claim without prejudice. Id.
The exhaustion requirement is rooted in the Prison Litigation Reform Act, which provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title,... until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). California Department of Corrections and Rehabilitation (CDCR) regulations provide administrative procedures in the form of one informal and three formal levels of review to address plaintiff's claims. See Cal. Code Regs. tit. 15, §§ 3084.1-3084.7. Administrative procedures generally are exhausted once a prisoner has received a "Director's Level Decision," or third level review, with respect to his issues or claims. Cal. Code Regs. tit. 15, § 3084.5. All steps must be completed before a civil rights action is filed, unless a plaintiff demonstrates a step is unavailable to him; exhaustion during the pendency of the litigation will not save an action from dismissal. McKinney v. Carey, 311 F.3d 1198, 1200 (9th Cir. 2002). Defendants bear the burden of proving plaintiff's failure to exhaust. Wyatt, 315 F.3d at 1119.
In his complaint, plaintiff alleges that on March 1, 2007, defendant purposefully gave plaintiff the wrong medication, which resulted in plaintiff's passing out and experiencing terrible pain, among other things. Plaintiff also asserts he did not exhaust administrative remedies with respect to his allegations against defendant because the facts presented are "nongri[e]vable." Compl. at 3.*fn1
The California Code of Regulations provides that an inmate may appeal "any departmental decision, action, condition, or policy which they can demonstrate as having an adverse effect on their welfare." Cal. Code Regs. tit. 15, § 3084.1. Plaintiff asserts several reasons why this court should excuse the exhaustion requirement. None has any merit. Opp'n at 3-4.*fn2 Plaintiff also asks that the court stay this action while plaintiff exhausts administrative remedies. Id. at 4. The law is clear, however, that plaintiff must exhaust administrative remedies before bringing an action under 42 U.S.C. § 1983. McKinney, 311 F.3d at 1200.
For the foregoing reasons, the court will recommend that defendant's motion to dismiss be granted, that plaintiff's remaining claim be dismissed without prejudice for plaintiff's failure to exhaust administrative remedies with respect to his claim prior to filing suit and that this case be closed.*fn3
Accordingly, IT IS HEREBY RECOMMENDED that:
1. Defendant Koos's motion to dismiss (#16) be granted;
2. Plaintiff's Eighth Amendment claim against defendant Koos be dismissed without prejudice for plaintiff's failure to exhaust administrative remedies with respect to his claim prior to filing suit; and
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten days after service of the objections. The parties are advised that failure to ...